FBI saw mortgage fraud early

The FBI was aware for years of "pervasive and growing" fraud in the mortgage industry that eventually contributed to America's financial meltdown, but did not take definitive action to stop it.

"It is clear that we had good intelligence on the mortgage-fraud schemes, the corrupt attorneys, the corrupt appraisers, the insider schemes," said a recently retired, high FBI official. Another retired top FBI official confirmed that such intelligence went back to 2002.

The problem, according to the two FBI retirees and several other current and former bureau colleagues, is that the bureau was stretched so thin that no one noticed when those lenders began packaging bad mortgages into bad securities.

"We knew that the mortgage-brokerage industry was corrupt," the first of the retired FBI officials told the Seattle P-I. "Where we would have gotten a sense of what was really going on was the point where the mortgage was sold knowing that it was a piece of dung and it would be turned into a security. But the agents with the expertise had been diverted to counterterrorism."

The FBI not only lacked the resources, but also never got the tips it needed from the banking regulatory agencies. The Securities and Exchange Commission, the Office of Thrift Supervision and the Office of the Comptroller of the Currency also failed to detect the securities issue, said the first retired FBI official.

"These are very resource-intense cases that take a lot of work by very skilled people," said John Falvey Jr., a former federal prosecutor who currently does white-collar criminal defense work in Boston.

And Falvey said that financial executives who deliberately chose not to learn the facts about dicey mortgage-lending practices in their companies -- who chose to be "willfully blind" to such practices and the subsequent securitization of those mortgages -- could be vulnerable to prosecution for securities fraud.

Both retired FBI officials asserted that the Bush administration was thoroughly briefed on the mortgage fraud crisis and its potential to cascade out of control with devastating financial consequences, but made the decision not to give back to the FBI the agents it needed to address the problem. After the terrorist attacks of 2001, about 2,400 agents were reassigned to counterterrorism duties.

This mass reassignment was first chronicled by the Seattle P-I in the Terrorism Tradeoff, a series of investigative reports beginning in 2007 and stretching into 2008. That administration policy, the P-I reported, resulted in a dramatic plunge in FBI criminal investigations and referrals for prosecution. And recent data from Syracuse University researchers shows the problem has worsened.

FBI Assistant Director Ken Kaiser -- in a statement - took issue last week with any implication "that if the FBI had made more arrests for mortgage fraud, the crisis could have been averted. To even suggest that is a cry for a lesson in both civics and basic economics.

"It is not a fair or realistic assessment."

The FBI is now making one of its largest hiring pushes ever. The bureau is seeking 850 new agents this year, some to fill vacancies that had been allowed to languish for years even as the administration blocked efforts to reinforce the FBI's crime squads.

Still, a P-I analysis of information provided by the FBI shows that 850 new agents doesn't come close to restoring the bureau's crime squads. It would take more than double the number of agents and at least $400 million of new funding to bring the bureau's corps of crime-fighters back to pre- 9/11 levels.

But Deputy Director Steve McMillin of the Bush White House's Office of Management and Budget told the P-I last year that even partially restoring the FBI crime-fighting capabilities was not a priority.

"The assumption that how it was pre- 9/11 is how it ought to be for all time is not the correct premise," he said.

The first retired FBI official said: "We made a direct pitch (for more agents) to the OMB even though we weren't supposed to and they said no." Instead, "we were looking at reductions, not additions."

Further complicating efforts to detect and prosecute mortgage fraud, banks and other mortgage lenders were making so much money from the constant churn of transactions and the continually escalating price of homes that the fraud that did arise simply didn't cost the industry enough money to raise their concerns.

"You had victim banks that would not acknowledge that they were victims," said the first retired FBI official. " 'We're not out any money,' they would say. Nothing has been foreclosed. The banks weren't reporting, the regulators weren't regulating and the FBI was concentrating on external mortgage fraud as opposed to the underlying internal problem."

And the administration's attention was turned to terrorism.

When FBI Director Robert Mueller was briefed on mortgage fraud, "his eyes would glaze over," the first retired FBI official said. "It was not something that he would consider a high priority. It was not on his radar screen."

"We knew we had a broader problem, but you've got a Justice Department and the administration saying you need to concentrate on domestic intelligence and counterterrorism," the first official said. "It wasn't very popular to ask for resources for anything. It was dead on arrival."

The second FBI official said: "Mueller was caught in a box.

"Mueller actually circumvented the Justice Department and the OMB to get resources. But he was shut down" by the administration.

Public statements by one high FBI executive shows that the bureau was well aware of the potentially devastating impact of rampant mortgage fraud at least five years ago. The executive ominously foretold the crisis in testimony before Congress.

"Based on various industry reports and FBI analysis, mortgage fraud is pervasive and growing," Chris Swecker, then assistant director of the criminal investigation division, said in October 2004 before the House subcommittee on housing and community opportunity.

Then Swecker made a chillingly accurate prediction of the coming mortgage meltdown and financial collapse:

"The potential impact of mortgage fraud on financial institutions in the stock market is clear. If fraudulent practices become systemic within the mortgage industry and mortgage fraud is allowed to become unrestrained, it will ultimately place financial institutions at risk and have adverse effects on the stock market."

Swecker went on to describe the scenario that ultimately wrecked financial havoc around the world: "Often mortgage loans sold in secondary markets are used by financial institutions as collateral for other investments. ... When loans sold in the secondary market default and have fraudulent or material misrepresentation ... these loans become a nonperforming asset, and in extreme fraud cases, the mortgage-backed security is worthless. Mortgage fraud losses adversely affect loan-loss reserves, profits, liquidity levels and capitalization ratios, ultimately affecting the soundness of the financial institution itself."

Swecker declined recently to comment, other than to say, "My testimony in 2004 speaks for itself."

But Kaiser, who currently occupies Swecker's old post, warned against misinterpreting the testimony.

"In context, Assistant Director Chris Swecker meant he believed the FBI could stay focused on mortgage fraud to prevent fraud from becoming the major driver that would cause a collapse of credit in the housing market," Kaiser said in comments e-mailed to the P-I earlier this month. "We believe by a good measure, the bureau did that.

"The FBI's Criminal Division has arrested 1,000 suspects and targeted 180 criminal enterprises since 2004," Kaiser said. "We targeted those lenders and buyers involved in multiple frauds or cases where the profits went to drug crews, gangs or organized crime. More investigations are ongoing. But the FBI is a law enforcement and intelligence agency, we are not banking regulators."

It wasn't just the FBI's white-collar crime program that lacked the resources and political will to do its job.

The Office of Thrift Supervision and the Office of the Comptroller of the Currency "and the bank regulators are really the first line of defense," the first official said. "The investigative agencies (like the FBI) are the second line of defense. We all caught the mortgage fraud aspect. But none of us caught the corporate fraud aspect."

But even if the regulatory agencies had come to the FBI with the tips, the resources necessary to pull off such an inquiry simply did not exist.

"There were two hurdles," said the second retired FBI official, "not enough agents working in the criminal area and not enough (federal prosecutors) to prosecute these complex cases. You have to have investigators to follow the money, you have to follow the decision making to take it up to the corporate suites. And we didn't have it."

The FBI had every certified public accountant in the bureau working on big fraud cases such as Enron and HealthSouth, the first retired FBI official said. "The ones that weren't working (those cases) went to terrorist financing."

The SEC, said the official, did not show an interest in working with the FBI on the problem, either. And it didn't begin responding to pervasive financial corruption until after the economy collapsed.

"The regulators are the ones embedded in the banks," the first retired FBI official said. "They would be able to see it if they were looking. They were the first line of defense in detecting it."

SEC officials declined to comment.

Thrift office spokesman William Ruberry said, "The OTS has a robust enforcement program to investigate and take appropriate action against corruption and fraud uncovered by our examiners, reported by consumers or conveyed by other sources."

Comptroller's office spokesman Kevin Mukri said only that "the OCC has always had and continues to have a professional and cooperative working relationship with all law enforcement agencies."

Nevertheless, high FBI and Bush administration officials knew a potentially devastating problem was on the horizon and failed to stop it.

"It was a sleight of hand because the public thought the administration was resourcing counterterrorism when in fact they were forcing cannibalization of the criminal program," the retired FBI official said. "Now the chickens have come home to roost."